[Eugene Volokh] First Amendment Injunction Against Administration in Perkins Coie Law Firm Case

[The result generally strikes me as correct; but this is surely not the last word on the matter, since I expect a prompt appeal to the D.C. Circuit.]

A very short excerpt from a 102-page opinion today by Judge Beryl Howell (D.D.C.) in Perkins Coie LLP v. U.S. Department of Justice:

Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, however, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with "tolerance, not coercion." 303 Creative LLC v. Elenis (2023). The Supreme Court has long made clear that "no official, high or petty, can prescribe what shall be orthodox in politics … or other matters of opinion." W. Va. State Bd. of Educ. v. Barnette (1943). Simply put, government officials "cannot … use the power of the State to punish or suppress disfavored expression." NRA v. Vullo (2024).

That, however, is exactly what is happening here. For this reason, and those explained more fully below, Executive Order 14230 is unconstitutional, and the findings and instructions to Executive Branch agencies issued in its Sections 1 through 5 cannot be allowed to stand….

[P]laintiff is entitled to summary judgment on the following: (1) the claims of unconstitutional retaliation and viewpoint discrimination, in violation of the First  Amendment …; (2) the claim of unconstitutional compelled disclosure, in violation of the First Amendment …; (3) the claim of unconstitutional denial of equal protection of the law, in violation of the Fifth Amendment …; (4) the claims that EO 14230 violates the Fifth and Sixth Amendment right to counsel of plaintiff's clients …; (5) the claim of unconstitutional denial of due process of the law, in violation of the Fifth Amendment …; and (6) the claim that EO 14230 is unconstitutionally vague, in violation of the Fifth Amendment ….

{Plaintiff additionally claims … that Sections 1, 2(b), 3, and 5 of EO 14230 violate the Constitution's inherent separation of powers through the "Unconstitutional Exercise of Judicial Authority." Since resolution of plaintiff's claims alleging violations of the First, Fifth, and Sixth Amendments entitles plaintiff to summary judgment and the full relief sought in this case, … the separation of powers claim asserted in Count I need not be considered.} …

Note that I was one of the many signers of a law professors' amicus brief in the case, generally supporting Perkins Coie's position.

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